How does spouse transfer real property that was homestead of deceased?
Full Question:
Answer:
When no administration is necessary, a decedent’s written will can be admitted to probate solely as a “muniment of title”—in other words, creating an official record of ownership transfer occurring under the terms of the will. [TEX. PROBATE CODE Secs. 89A—89C]. When more
than four years have passed since the decedent’s death, the will can still be probated as a muniment, but the applicant must demonstrate that he or she is was “not in default” for failing to present the will for probate within the initial four-year period following death of the decedent. [TEX. PROBATE CODE Sec. 73(a)]. If a will is offered for probate more than four after the decedent’s death, notice of the application must be given to all persons who would be the decedent’s heirs-at-law if the decedent had died intestate.
Please see the following TX statutes:
§ 73 PROB. CODE. Period for Probate
(a) No will shall be admitted to probate after the lapse of four years
from the death of the testator unless it be shown by proof that the party
applying for such probate was not in default in failing to present the
same for probate within the four years aforesaid; and in no case shall
letters testamentary be issued where a will is admitted to probate after
the lapse of four years from the death of the testator.
(b) If any person shall purchase real or personal property from the
heirs of a decedent more than four years from the date of the death of
the decedent, for value, in good faith, and without knowledge of the
existence of a will, such purchaser shall be held to have good title to
the interest which such heir or heirs would have had in the absence of a
will, as against the claims of any devisees or legatees under any will
which may thereafter be offered for probate.
§ 74 PROB. CODE. Time to File Application for Letters Testamentary or
Administration
All applications for the grant of letters testamentary or of
administration upon an estate must be filed within four years after the
death of the testator or intestate; provided, that this section shall not
apply in any case where administration is necessary in order to receive or
recover funds or other property due to the estate of the decedent.
SECTION 1. Section 89A(a), Texas Probate Code, is amended to read as
follows:
(a) A written will shall, if within the control of the applicant, be
filed with the application for probate as a muniment of title, and shall
remain in the custody of the county clerk unless removed from the custody
of the clerk by order of a proper court. An application for probate of a
will as a muniment of title shall state:
(1) The name and domicile of each applicant.
(2) The name, age if known, and domicile of the decedent, and the fact,
time, and place of death.
(3) Facts showing that the court has venue.
(4) That the decedent owned real or personal property, or both,
describing the property generally, and stating its probable value.
(5) The date of the will, the name and residence of the executor
named in the will, if any, and the names and residences of the
subscribing witnesses, if any.
(6) Whether a child or children born or adopted after the making of
such will survived the decedent, and the name of each such survivor, if
any.
(7) That there are no unpaid debts owing by the estate of the testator,
excluding debts secured by liens on real estate.
(8) Whether a marriage of the decedent was ever dissolved after the
will was made, whether by divorce, annulment, or a declaration that the
marriage was voiddivorced, and if so, when and from whom.
(9) Whether the state, a governmental agency of the state, or a
charitable organization is named by the will as a devisee.
The foregoing matters shall be stated and averred in the application
to the extent that they are known to the applicant, or can with
reasonable diligence be ascertained by the applicant, and if any of such
matters is not stated or averred in the application, the application
shall set forth the reason why such matter is not so stated and averred.
SECTION 2. The changes in law made by this Act to Section 89A(a), Texas
Probate Code, apply only to an application for probate of a will as a
muniment of title filed on or after the effective date of this Act. An
application for probate of a will as a muniment of title filed before the
effective date of this Act is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2009.
§ 89B PROB. CODE. Proof Required for Probate of a Will as a Muniment of
Title
(a) General Proof. Whenever an applicant seeks to probate a will as a
muniment of title, the applicant must first prove to the satisfaction of
the court:
(1) That the person is dead, and that four years have not elapsed since
the person's death and prior to the application; and
(2) That the court has jurisdiction and venue over the estate;
and
(3) That citation has been served and returned in the manner and for
the length of time required by this Code; and
(4) That there are no unpaid debts owing by the estate of the
testator, excluding debts secured by liens on real estate.
(b) To obtain probate of a will as a muniment of title, the applicant
must also prove to the satisfaction of the court:
(1) If the will is not self-proved as provided by this Code, that the
testator, at the time of executing the will, was at least 18 years of
age, or was or had been lawfully married, or was a member of the armed
forces of the United States or of the auxiliaries of the armed forces of
the United States, or of the Maritime Service of the United States, and
was of sound mind; and
(2) If the will is not self-proved as provided by this Code, that the
testator executed the will with the formalities and solemnities and under
the circumstances required by law to make it a valid will; and
(3) That such will was not revoked by the testator.
§ 89C PROB. CODE. Probate of Wills as Muniments of Title
(a) In each instance where the court is satisfied that a will should be
admitted to probate, and where the court is further satisfied that there
are no unpaid debts owing by the estate of the testator, excluding debts
secured by liens on real estate, or for other reason finds that there is
no necessity for administration upon such estate, the court may admit
such will to probate as a muniment of title.
(b) If a person who is entitled to property under the provisions of the
will cannot be ascertained solely by reference to the will or if a
question of construction of the will exists, on proper application and
notice as provided by Chapter 37, Civil Practice and Remedies Code, the
court may hear evidence and include in the order probating the will as a
muniment of title a declaratory judgment construing the will or
determining those persons who are entitled to receive property under the
will and the persons' shares or interests in the estate. The judgment is
conclusive in any suit between any person omitted from the judgment and a
bona fide purchaser for value who has purchased real or personal property
after entry of the judgment without actual notice of the claim of the
omitted person to an interest in the estate. Any person who has delivered
property of the decedent to a person declared to be entitled to the
property under the judgment or has engaged in any other transaction with
the person in good faith after entry of the judgment is not liable to any
person for actions taken in reliance on the judgment.
(c) The order admitting a will to probate as a muniment of title shall
constitute sufficient legal authority to all persons owing any money to
the estate of the decedent, having custody of any property, or acting as
registrar or transfer agent of any evidence of interest, indebtedness,
property, or right belonging to the estate, and to persons purchasing from
or otherwise dealing with the estate, for payment or transfer, without
liability, to the persons described in such will as entitled to receive
the particular asset without administration. The person or persons
entitled to property under the provisions of such wills shall be entitled
to deal with and treat the properties to which they are so entitled in
the same manner as if the record of title thereof were vested in their
names.
(d) Unless waived by the court, before the 181st day, or such later day
as may be extended by the court, after the date a will is admitted to
probate as a muniment of title, the applicant for probate of the will
shall file with the clerk of the court a sworn affidavit stating
specifically the terms of the will that have been fulfilled and the terms
of the will that have been unfulfilled. Failure of the applicant for
probate of the will to file such affidavit shall not otherwise affect
title to property passing under the terms of the will.